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University  of  California  •  Berkeley 


Jack  Fleming  Prison  Collection 


Document  No.  22. 


IN  ASSEMBLY.]  [SESSION  1855. 


REPORT 


OF   THE 


SPECIAL  COMMITTEE 


ON 


STATE   PRISON. 


SUBMITTED  MARCH  29,  1855. 


[B.  B.  REDDING,  STATE  PRINTER 


EEPOET 


Mr.  Speaker  : 

The  special  Committee  on  State  Prison,  in  obedience  to  the  instructions  of 
the  Assembly  requiring  them,  in  conjunction  with  a  special  Committee  appointed 
by  the  Senate,  to  visit  the  State  Prison  and  examine  into  the  condition  and 
management  of  that  institution,  have  performed  that  duty,  and  respectfully  ask 
leave  to  make  the  following  report  : 

In  consequence  of  the  various  rumors  which  had  obtained  circulation  in  con- 
nection with  the  condition  and  management  of  the  State  Prison,  your  Committee 
deemed  it  their  duty,  after  a  personal  inspection  of  the  Prison  and  Prison 
grouuds,  to  call  before  them  witnesses  and  make  a  thorough  investigation  as  to 
the  correctness  of  these  rumors,  and  also  ascertain  what  was  the  cause  of  the 
numerous  escapes  of  convicts  from  the  Prison.  We  have  also  collected  a  great 
deal  of  testimony  as  to  the  profit  or  loss  of  the  present  lessee  of  the  State 
Prison  by  the  Prison  labor,  and  as  to  the  possibility  of  making  that  institution 
support  itself  or  become  a  source  of  revenue  to  those  who  are  entitled  to  the 
labor  of  the  prisoners.  From  this  mass  of  testimony,  your  Committee  are 
forced  to  the  conclusion  that  the  system  at  present  practiced  by  the  lessee  is 
seriously  objectionable,  and  wholly  fails  to  accomplish  the  great  object  which 
should  be  aimed  at  by  the  establishment  of  a  State  Prison,  namely,  the  cer- 
tainty of  punishment,  according  to  our  criminal  code,  and  the  moral  reformation 
of  the  convict. 

In  consequence  of  the  peculiar  management  of  the  convicts,  and  the  police 
regulations  of  the  Prison,  it  was  difficult  to  obtain  perfectly  satisfactory  evidence 
of  the  number  of  convicts  now  confined  in  the  State  Prison.  We  place  the 
number,  however,  at  three  hundred  and  thirteen.  The  Inspectors  estimate  the 
number,  at  the  date  of  their  report  of  January  30th,  at  two  hundred  and 
seventy-five,  while  the  lessee,  J.  M.  Estell,  in  his  report  to  the  Legislature, 
dated  January  28,  states  the  number  as  over  three  hundred.  From  this  evi- 
dence, together  with  such  information  as  we  could  gather  at  the  Prison  grounds, 
we  set  down  the  number  as  above  stated.    Since  the  visit  of  your  Committee  to 


the  Prison,  we  are  informed  that  about  fifty  new  convicts  have  been  received, 
making  the  number,  at  this  time,  three  hundred  and  sixty-three.  Near  one 
half  of  these  prisoners  are  worked  at  Marin  Island,  in  the  Bay  of  San  Pablo, 
about  two  and  a  half  miles  from  the  Prison.  The  others  are  engaged  at  the  Prison, 
and  in  running  vessels  to  San  Francisco,  transporting  stone  and  brick,  and  in 
getting  wood  from  the  hills  with  which  to  burn  brick  kilns.  The  convicts  are 
required  to  labor  from  sunrise  until  sunset,  except  the  time  necessarily  engaged 
in  eating  their  meals. 

Although  there  was  some  complaint  among  the  convicts  as  to  the  kind  and 
quality  of  food  and  clothing,  yet  your  Committee  believe  that  they  have  no  just 
ground  for  complaint  in  this  particular.  The  health  of  the  convicts  seemed  to 
be  remarkably  good.  In  accordance  with  the  provisions  of  an  Act  passed  May 
15th,  1853,  a  Prison  has  been  erected,  with  forty-eight  cells  on  the  second 
story,  which,  by  the  present  arrangement  of  the  lessee,  of  confining  four  pris- 
oners in  a  cell,  will  safely  confine  one  hundred  and  ninety-two.  The  lower 
story  is  divided  into  an  office,  guard  room,  and  a  long  room  in  which  prisoners 
are  confined.  The  Prison  is  a  very  substantial  building,  and  altogether  safe  for 
the  confinement  of  prisoners  at  night.  Those  engaged  at  work  on  Marin  Island 
are  confined  at  night  on  board  of  an  old  brig,  which  is  firmly  secured  to  the 
shore.  Although  not  as  securely  confined  at  night  as  those  at  the  Prison,  yet 
their  insular  position  banishes  the  idea  of  escape  from  their  minds,  unless  they  can 
get  outside  aid  to  procure  boats  with  which  to  leave  the  island.  Although  a  par- 
tially successful  revolt  occurred  in  December  last,  by  which  twenty-two  prisoners 
secured  a  boat  and  escaped,  yet  we  believe  that  with  ordinary  care  the  convicts  can 
be  more  safely  confined  on  this  island  than  at  the  State  Prison. 

It  would  be  exceedingly  dangerous  to  keep  all  the  convicts  at  the  State  Prison 
at  the  present  time.  There  is  prison  room  for  but  little  more  than  half  of  them,  and 
it  is  feared  that  so  large  a  body  of  convicts  thrown  together,  without  sufficient 
means  of  confinement,  would  be  the  signal  for  a  revolt,  which,  unless  the  guards  be 
greatly  increased,  would,  in  all  probability,  be  successful. 

The  lessee  has  under  his  employ  about  thirty  men,  who  act  as  officers  and  guard. 
This  number  is  not,  in  the  estimation  of  your  Committee,  sufficient  to  suppress  a 
revolt  with  certainty,  and  this  number,  when  divided  between  the  Prison  and  the 
island,  does  not  present  that  formidable  appearance  to  the  convict  which  would  dis- 
courage them  from  any  attempt  at  an  outbreak.  It  is  the  custom  of  the  lessee  to 
send  six,  eight  or  ten  prisoners  to  the  woods,  to  procure  wood,  with  but  a  single 
guard.  Escapes  frequently  occur  while  out  in  these  parties.  Prisoners  have  been 
sent  out  from  the  Prison  to  work  on  a  ranch  with  and  without  guard.  But  the 
most  of  the  escapes  are  occasioned  by  the  adoption  of  a  system  denominated  the 
"  trustie  svstem."  By  this  system,  a  prisoner,  whose  term  of  service  is  about  ex- 
piring, or  who  has  behaved  well,  or  has  been  recommended  to  the  lessee  as  a  gen- 
tleman and  a  man  of  good  standing  and  family,  is  permitted  to  do  light  work,  to  be 
kept  separate  from  the  mass  of  prisoners,  to  go  on  errands  for  miles  in  the  country, 
on  foot  or  on  horseback,  alone  ;  to  go  to  San  Francisco ;  to  sleep  without  the  guard 
at  the  cook  house,  off  the  Prison  grounds,  and  other  liberalities,  which  are  frequently 
taken  advantage  of  to  escape.  It  is  believed  that  most  who  are  now  at  large  have 
escaped  by  this  "  trustie  system."  Although  we  are  not  prepared  to  entirely 
condemn  the  "trustie  system,"  as  such,  yet  it  requires  the  exercise  of  the  best 
judgment  to  know  who  to  trust.  It  is  sometimes  advantageous  to  have  some  among 
the  prisoners  who  will  aid  in  giving  information  concerning  rebellions  and  efforts  at 
escapes,  and  to  assist  in  suppressing  revolts.  The  use  of  this  system  has  been  and 
may  be  serviceable,  but  it  should  be  exercised  with  caution,  and  not  to  that  extent 
that  has  been  practised  in  our  State  Prison. 


5 

There  are  few  men  who  have  been  sentenced  to  the  State  Prison — no  matter  for 
what  oiFense,  no  matter  what  may  have  been  their  former  character — who,  when 
an  opportunity  is  offered-  them  to  escape  by  stepping  on  board  of  a  ship  bound  from 
our  shores,  would  not  take  advantage  of  it,  and  thus  regain  their  liberty.  From 
the  numerous  escapes  that  have  been  effected  under  cover  of  this  system  in  this 
State,  we  cannot  but  recommend  that  it  be  discontinued,  as  far  as  they  are  allowed 
to  leave  the  Prison  grounds,  and  that  those  selected  within  the  Prison  grounds 
should  be  selected  with  the  greatest  care. 

The  convicts  at  the  Prison  are  engaged  in  making  brick,  on  grounds  adjoining 
the  Prison  grounds,  which  are  well  adapted  for  the  purpose,  and  under  the  control 
of  General  Estell.  Those  at  Marin  Island  are  engaged  at  quarrying  stone  from  an 
excellent  quarry,  which  we  understand  is  owned  by  General  Estell. 

The  Committee  having  ascertained  the  present  market  value  of  brick  and  stone 
in  the  city  of  San  Francisco,  and  the  quality  that  can  be  furnished  by  convict 
labor,  are  well  satisfied  that,  with  ordinary  energy  and  judgment,  the  institution 
can  be  made  not  only  a  self-supporting  institution,  but  even  profitable.  Yet  the 
Committee  are  assured  by  the  lessee  that  he  has  lost,  by  keeping  the  State  pris- 
oners, under  his  present  contract,  $127,000.  These  losses,  he  informs  us,  occurred 
in  consequence  of  bad  management  in  the  Prison  matters,  and  that  only  in  the  last 
six  months  ha§  he  been  able  to  make  any  profit  on  the  Prison  labor.  He  has  now 
favorable  contracts  for  furnishing  bricks  and  stone,  in  the  city  of  San  Francisco, 
and  that  he  has  realized  $45,000  profit  in  the  last  six  months. 

From  evidence,  your  Committee  believe  that,  with  ordinary  care,  a  profit  of  one 
dollar  per  day  to  the  convict  may  be  realized,  over  and  above  all  necessary  expenses, 
such  as  food,  clothing,  guards,  and  working  tools.  Estimating  the  number  of 
working  convicts  at  three  hundred,  we  have,  by  this  calculation,  $1,800  per  week, 
or  $97,200  clear  profit  per  year.  This  calculation  is  made  upon  the  supposition 
that  favorable  contracts  can  be  made  for  the  delivery  of  bricks  and  stone  in  the 
city  of  San  Francisco,  or  at  a  place  no  further  from  the  Prison. 

The  general  management  of  the  Prison,  in  the  opinion  of  your  Committee,  is  not 
such  as  it  should  be  in  order  to  secure  the  safety  of  the  convicts.  Many  regula- 
tions might  be  made,  even  under  the  present  contract,  which,  we  think,  would 
insure  more  certainly  the  security  of  the  convicts.  The  rules  and  regulations  of 
the  guard  are  not  sufficiently  systematic,  nor  are  they  sufficiently  stringent  upon 
the  guard  and  officers.  Liquor  has  been  used  to  excess  among  the  guard  and 
officers.  Prisoners  themselves  have  been  allowed  liquor  by  the  guard,  in  some 
instances.  The  convicts  are  not  required  to  dress  in  uniform,  but  to  retain  the 
clothes  worn  by  them  when  brought  to  the  Prison  ;  so  it  is  difficult  to  distinguish  a 
convict  from  one  of  the  guard.  Their  heads  are  not  required  to  be  shaved  regu- 
larly, nor  are  they  required  to  change  their  clothes  as  often  as  cleanliness  would 
require.  We  believe  that  if  a  system  of  uniformity  of  dress  (which,  by  its  peculi- 
arity, would  attract  attention,)  would,  if  adopted,  tend  to  prevent  escapes ;  and  if 
the  heads  were  required  to  be  shaved  once  a  week,  the  escaped  convicts  would  be 
recognized  and  their  arrest  would  be  facilitated.  It  is  proper  to  remark,  however, 
that,  so  far  as  these  rules  affect  the  police  regulations  of  the  Prison,  their  establish- 
ment was  the  duty  of  the  Inspectors  of  the  State  Prison,  and  the  lessee  would  have 
been  compelled  to  comply  with  them.  In  consideration  of  these  numerous  defects 
in  the  government  and  discipline  of  the  Prison,  by  which  so  many  escapes  were 
effected,  and  also  in  consequence  of  want  of  sufficient  room  at  the  Prison  and 
Prison  grounds,  by  which  the  convicts  could  be  made  secure,  we  made  it  a  part  of 
our  duty  to  investigate  the  remedy  the  State  might  have  to  correct  themselves, 
retaining  the  contract  with  General  Estell,  the  present  lessee,  or  by  dissolving  the 
present  connection  between  the  lessee  and  the  State  and  making  such  radical  im- 


provements,  both  in  discipline  and  buildings,  as  will  protect  our  citizens  and  insure 
the  security  of  the  convicts. 

The  law  of  1851  made  General  J.  M.  Estell  and  M.  G.  Vallejo  the  lessees  of  the 
State  Prison  for  ten  years.  In  1852,  the  Legislature,  by  a  special  act,  released 
M.  G.  Vallejo  and  made  J.  M.  Estell  the  sole  lessee  under  the  act  of  1851,  upon 
his  filing  his  bond  in  the  office  of  the  Secretary  of  State,  to  be  approved  by  the 
Governor,  in  the  sum  of  $100,000 ;  which  conditions  the  said  Estell  has  complied 
with  A  copy  of  said  bond  is  herewith  reported,  marked  "  Exhibit  A."  The 
said  law  of  1851  is  a  contract  entered  into  between  the  State  and  the  lessee,  and 
the  law  regulating  the  construction  of  contracts  generally  must  apply  to  this.  By 
this  law  the  lessee  has,  for  ten  years,  the  sole  charge  of  the  convicts  sentenced  to 
the  State  Prison.  He  is  required  to  "  feed  and  clothe  the  prisoners  and  pay  all 
other  necessary  expenses,  as  that  for  guards  and  tools  to  work  with  ;  to  prepare 
suitable  temporary  buildings  upon  the  grounds  herewith  leased,  or  shall  have  suit- 
able and  secure  Prison  ships  or  vessels,  properly  arranged  for  the  health  and 
security  of  the  convicts,  until  the  State  shall  build  the  State  Prison."  It  then, 
in  a  provision  to  the  seventh  section,  states  that  "  this  Act  shall  not  be  so  construed 
as  to  confine  the  labor  of  the  prisoners  within  the  walls  of  said  Prison,  or  to  any 
particular  place  or  labor. 

We  believe  that  the  Legislature  is  bound  to  the  contract  as  it  is  made  ;  that  the 
Legislature  has  no  right  to  alter  or  change  that  contract  in  any  material  point,  so  as 
to  require  any  additional  expense  in  keeping  prisoners,  or  by  which  their  labor 
would  be  made  more  unprofitable  to  the  Lessee  without  the  consent  of  said  Lessee. 
That  if  the  Lessee  had  violated  the  contract  so  as  to  work  a  forfeiture  of  the  con- 
tract, that  we  could  not  by  a  Legislative  Act  annul  said  contract ;  but  that  our  rem- 
edy would  be  entirely  judicial.  In  order  to  satisfy  ourselves  more  perfectly  as  to 
the  correctness  of  these  positions,  we  addressed  a  series  of  interrogatories  to  the 
Attorney  General,  and  received  an  answer  from  him  in  which  he  sustains  the  po- 
sition above  laid  down.  The  communication  of  the  Attorney  General  is  reported 
as  exhibit  "  B,"  and  made  a  part  of  this  report. 

From  the  construction  placed  upon  the  statutes  of  1851,  your  Committee  are  not 
satisfied  from  the  evidence,  that  the  Lessee  has  violated  his  contract  in  so  material  a 
point  as  to  work  a  forfeiture  before  any  court  of  justice,  but  from  the  peculiar  word- 
ing of  the  statute  it  seemed  to  be  the  object  of  the  Legislature  to  give  ever}7  ad- 
vantage to  the  Lessee,  in  order  to  enable  him  to  keep  the  prisoners  safely,  and  at 
the  same  time  make  it  a  source  of  profit  to  himself.  We  are  of  the  opinion,  there- 
fore, that  the  Legislature  could  not  compel  the  Lessee  to  clothe  the  convicts  in  uni- 
form, or  shave  their  heads,  or  increase  or  in  any  way  regulate  the  guards,  or  re- 
quire any  additional  temporary  buildings,  or  forbid  the  "  Trustie  system,"  or  re- 
quire him  to  work  the  prisoners  within  the  prison  walls  or  on  the  prison  grounds. 

In  view  of  all  these  positions,  and  the  great  necessity  that  exists  for  additional 
buildings  on  the  State  Prison  grounds,  for  the  safety  and  security  of  the  convicts, 
your  committea  have  concluded  to  recommend  to  the  Legislature  to  buy  the  said 
lease  from  the  said  James  M.  Estell.  In  answer  to  a  resolution  adopted  by  the 
committee,  the  said  lessee  agrees  to  sell  his  said  lease  to  the  State  for  the  sum  of 
$100,000,  which  proposition  we  submit  to  the  Legislature  and  recommend  that  it  be 
accepted,  and  that  a  bill  prepared  by  the  committee  and  herewith  reported  for  that 
purpose,  be  passed. 

We  are  induced  to  make  this  recommendation  for  the  following  reasons  :  The 
urgent  necessity  for  additional  prison  room  is  not  only  apparent  to  your  committee, 
but  to  the  whole  community  ;  it  is  required  by  every  consideration  of  reason  and 
justice.     As   the  convicts  now  are,  they  may  at  any  time  by  a  successful  revolt,  be 


cast  loose  upon  society,  and  the  probability  of  their  escape  is  so  apparent  to  the  citi- 
zens of  the  country  adjoining  the  prison,  that  they  live  in  constant  fear,  and  as  testi- 
mony shows,  the  price  of  real  estate  in  the  surrounding  country  has  been  materially 
reduced  in  consequence  thereof. 

The  lessee  cannot  in  our  opinion,  be  compelled  to  build  additional  buildings  on 
the  prison  grounds  ;  it  remains  therefore,  the  duty  of  the  State  to  build  this  ad- 
ditional prison  room.  To  make  an  appropriation  and  let  out  the  building  of  said 
prison  by  contract,  would,  in  the  estimation  of  your  committee,  require  the  sum  of 
at  least,  three  hundred  and  fifty  thousand  dollars. 

While  we  recognize  the  necessity  of  these  improvements,  we  are  not  prepared  in 
the  present  exhausted  state  of  our  Treasury,  to  recommend  so  large  an  outlay  of 
money,  but  by  the  purchase  proposed,  the  State  becomes  again  the  sole  owner  of  the 
prison  labor,  which  under  proper  management  can,  and  should  be  required  to  do 
this  work,  thereby  saving  to  the  State  a  very  great  outlay  of  treasure.  From  the 
report  of  the  Inspectors,  we  are  informed,  that  there  is  every  kind  of  mechanics 
among  the  convicts,  and  some  as  well  skilled  in  mechanism  as  can  be  found  outside 
of  the  prison  walls.  Under  a  system  which  your  committee  is  now  prepared  to 
recommend,  this  convict  labor  will  be  applied  to  the  erection  of  these  additional 
prisons,  and  their  completion  effected  as  soon  by  this  means  as  by  letting  it  out  by 
contract,  and  certainly  at  not  more  than  one-third  of  the  expense.  We  also,  in  ac- 
cordance with  the  proposition  of  the  lessee  above  referred  to,  recommend  that  the 
property  attached  to  the  prison,  and  necessary  to  the  labor  of  the  convicts,  be  pur- 
chased at  a  price  to  be  affixed  by  appraisers,  two  appointed  by  the  Legislature  and 
one  by  the  lessee,  payable  in  brick  and  stoue  in  San  Francisco  at  market  prices. 

The  property  here  referred  to  consists  of  the  necessary  working  tools  for  blasting 
and  dressing  stone,  brick  machinery,  machine  shop  and  steam  engine,  together  with 
sixteen  acres  of  land  lying  adjacent  to  the  prison  grounds,  and  upon  which  is  situ- 
ated the  brick  yard  and  dining  room  for  the  convicts,  with  other  necessary  buildings 
thereon.  This  purchase  we  deem  necessary  to  the  successful  and  convenient  work- 
ing of  the  convicts. 

Should  the  plan  here  suggested  by  the  committee  be  adopted,  and  the  convicts  of 
i  the  State  Prison  be  placed  under  the  supervision  of  a  warden  or  superintendent,  we 
would  not  recommend  that  all  the  prisoners  be  removed  forthwith  to  the  prison 
ground  for  fear  of  an  outbreak,  but  that  one-half  be  engaged  elsewhere  in  making 
bricks  and  quarrying  stone,  with  which  to  pay  for  the  property  purchased  in  accor- 
dance with  the  agreement  made  with  the  lessee  in  the  resolution  and  answer  above 
referred  to,  which  said  resolution  and  answer  is  herewith  submitted,  marked  ex- 
hibit "C." 

Your  committee  in  the  course  of  their  investigation,  made  some  inquiry  concern- 
ing the  title  the  State  has  to  the  twenty  acres  of  land  on  Point  San  Quentin,  on 
which  the  prison  is  located,  purchased  from  B.  R.  Buckalew,  in  pursuance  to  an  Act 
passed  May  1,  1852,  depends  on  a  Mexican  grant,  which  said  grant  has  not  yet 
been  confirmed,  but  are  assured  by  the  lessee  that  if  said  grant  should  not  be  con- 
firmed that  he  holds  the  pre-emption  claim  to  the  same,  and  that  he  will  make  a  title 
to  the  State  as  soon  as  a  title  from  the  General  Government  can  be  obtained.  Al- 
though we  do  not  believe  the  location  as  good  as  might  have  been  selected,  yet  after 
so  large  an  outlay  of  money  as  has  been  expended  upon  that  ground,  we  are  not  dis- 
posed to  recommend  a  removal  of  the  prison,  if  good  title  can  be  obtained  to  the 
land  purchased  of  Mr.  Buckalew. 

The  Committee  are  preparing  bills  in  connection  with  the  prison  and  concerning 


8 

the  future  government  of  that  institution,  which  bills   they  will  present  as  soon  as 
the  bill  herewith  reported  shall  have  passed. 

All  of  which  is  most  respectfully  submitted. 

JOHN  T.  CRENSHAW, 

Chairman  Senate  Committee, 

G.  W.  COLBY, 


ASA  KINNEY, 

Chairman  Assembly  Committee, 

E.  J.  CUETIS, 
WILLIAM  A.  DANA, 
H.  P.  A.  SMITH, 

B.  C.  WHITING, 

Chairman  Select  Committee, 

S.  DAY, 

H.  P.  HEINTZELMAN. 


• 


Document  No.  23. 

■  i  i  =■ 

IN  ASSEMBLY.]  [SESSION  1855. 


REPORT 


OF  A  MAJORITY  OF  THE 


JUDICIARY  COMMITTEE, 


ON  THE   CONSTITUTIONALITY   OF 


ASSEMBLY  BILL,  NO.  199, 

"  An  Act  granting  to  James  L.  Graves  and  Thomas  C.  Burton  and  such 

others  as  they  may  associate  with  them,  the  right  to  construct  a 

Toll  Bridge  across  the  American  River,  at  or 

near  the  Mississippi  Bar." 


SUBMITTED  APRIL  2,  1855. 

[B.  B.  REDDING,  STATE  PRINT 


EEPOET. 


Mr.  Speaker: 

The  Committee  on  the  Judiciary  have  considered  Assembly  bill  No.  199,  enti- 
tled "An  Act  granting  to  James  L.  Graves  and  Thomas  C.  Burton,  and  such 
others  as  they  may  associate  with  them,  the  right  to  construct  a  Toll  Bridge  across 
the  American  Biver,  at  or  near  the  Mississippi  Bar,"  and  a  majority  submit  the 
following  report : 

It  is  understood  that  the  principal  purpose  of  the  present  reference  was  to  as- 
certain the  opinions  of  this  Committee  in  regard  to  the  constitutionality  of  the  bill, 
and  therefore  the  question  of  policy  and  propriety  will  be  left  as  presented  by  the 
previous  report  of  the  Committee  on  Roads  and  Highways.  On  the  first  submis- 
sion of  this  question,  a  majority  of  the  Committee  thought  that  it  would  be  readily 
determined  by  the  application  of  a  few  general  rules  and  principles  of  unquestioned 
accuracy,  and  that  no  labored  argument  by  us  could  be  required  or  even  tolerated. 
It  has,  however,  resulted  that  our  first  impressions  were  not  justified.  A  minority 
of  the  Committee,  reputabb  alike  for  ability  and  devotion  to  correct  principles, 
after  investigation,  have  expressed  an  opinion  wholy  antagonistic  to  that  of  our- 
selves. 

Meantime,  the  Executive,  in  view  of  the  duties  imposed  by  his  position,  has 
deemed  himself  constrained  to  interpose  his  veto  to  the  passage  of  two  kindred 
bills,  and  the  able  and  earnest  views  urged  by  his  Excellency,  cannot  fail  either  di- 
rectly or  indirectly,  to  materially  affect  the  determination  of  the  question.  But 
these  circumstances,  however  embarrassing,  cannot  justify  us  in  witholding  a  free 
and  full  expression  of  our  own  conclusions.  We  assume  that  it  is  as  much  the 
duty  of  the  Legislature  to  exercise  a  power  permitted  by  the  Constitution  when  de- 
manded by  the  public  good,  as  it  is  to  refrain  from  the  exercise  of  a  power  which  is 
denied  by  that  instrument. 

It  is  not  alone  the  duty  of  government  to  do  no  wrong, — to  fulfil  the  purposes  of 
its  creation  it  must  do  right.  A  just  fidelity  exacts  of  each  department  of  the 
government  a  prompt  vindication  of  the  constitution,  both  against  positive  infraction 
and  incautious  abandonment.  In  view  of  our  official  oaths,  we  cannot,  we  dare 
not,  passively  surrender  a  constitutional  power  of  the  Legislature,  the  exercise  of 
which  may  be  necessary  to  secure  the  best  interests  of  the  State — and  such  in  our 
opinion,  is  the  power  which  is  now  the  subject  of  argument. 

By  the  common  law  of  England,  all  Toll  Bridges  and  Public  Ferries  were  held 
to  be  prerogatives  of  the  Crown,  as  representative  of  the  State — and  where  the 


4 

right  to  keep  or  maintain  either  was  granted  to  an  individual,  it  was  termed  a  fran- 
chise ;  in  other  words,  it  was  "a  royal  prerogative  in  the  hands  of  a  subject."  We 
hazard  nothing  when  we  affirm,  that  throughout  the  American  Union  the  same 
rights  have  been  asserted  by  the  several  States.  With  us,  Toll  Bridges  and  public 
ferries  have  been  recognized  as  incidents  or  prerogatives  of  the  municipal  sov- 
ereignty, and  have  been  granted  to  private  citizens  in  the  exercise  of  the  Legisla- 
tive discretion. 

It  is  but  a  political  truism,  that  the  people  of  the  State  retain  all  powers  not  de- 
nied by  their  Constitution ;  and  these  powers  in  the  absence  of  any  constitutional 
restraint,  they  may  exercise  through  their  representrtives.  In  the  absence  then  of 
any  constitutional  inhibition,  the  subject  matter  of  this  bill  is  within  the  legitimate 
purview  of  the  Legislative  power.  Those  who  deny  the  power  must  show  the 
prohibition. 

The  doubt  in  this  case  is  suggested  by  Section  31  Article  4  of  our  State  consti- 
tution, which  provides  that  "  corporations  may  be  formed  under  general  laws,  but 
shall  not  be  created  by  special  Act,  except  for  municipal  purposes.  All  general 
laws  and  special  Acts  passed  pursuant  to  this  section,  may  be  altered  from  time  to 
time  or  repealed."  The  bill  under  consideration  is  for  a  special  Act,  and  for  pur- 
poses other  than  municipal,  within  the  meaning  of  the  section.  If,  therefore,  it 
proposes  to  create  or  confer  corporate  powers  or  privileges,  it  is  within  the  pro- 
hibition. The  Legislature  cannot  by  special  enactment  create  or  confer  such  pow- 
ers or  privileges.  We,  however,  confidently  assume  that  a  brief  examination  of 
the  bill  will  show  the  entire  absence  of  all  ground  to  affirm  that  it  proposes  to 
create  or  confer  any  such  power  or  privilege.  A  corporation  is  said  to  be  an  arti- 
ficial person,  and  according  to  Blackstone  there  are  five  incidents  inseparable  from 
its  very  existence.  Among  these  is  a  corporate  name  in  which  it  must  act — sue  and 
be  sued.  It  must  have  the  attribute  of  succession,  whereby  its  moneys  and  effects 
pass  from  its  members  to  their  successors  without  conveyance  or  assignment.  All 
the  corporators  may  change,  but  still  there  exists  the  same  corporation,  the  same 
artificial  person,  possessed  of  the  identical  properties  conferred  by  the  Act  of  its 
creation. 

The  purposes  and  incidents  of  corporations  are  perhaps  nowhere  set  forth 
more  happily  than  by  Chief  Justice  Marshall,  in  the  Dartmouth  College  vs 
Woodward.  "  A  corporation"  says  he,  "  is  an  artificial  being  invisible,  intangi- 
ble and  existing  only  in  contemplation  of  law.  Being  the  mere  creature  of  law, 
it  possesses  only  those  properties  which  the  charter  of  its  creation  confers  upon 
it  either  expressly  or  as  incidental  to  its  very  existence."  These  properties  con- 
tinues he,  "  enable  a  corporation  to  manage  its  own  affairs,  and  to  hold  property 
without  the  perplexing  intricacies,  the  hazardous  and  endless  necessity  of  per- 
petual conveyances  for  the  purpose  of  transmitting  it  from  hand  to  hand.  It  is 
chiefly  for  the  purpose  of  clothing  bodies  of  men  in  succession  with  these  quali- 
ties and  capacities  that  corporations  were  invented  and  used.  By  these  means  a 
perpetual  succession  of  individuals  are  capable  of  acting  for  the  promotion  of 
the  particular  object,  like  one  immortal  being." 

In  another  case,  this  eminent  jurist  says,  "  the  great  object  of  a  corporation 
is  to  bestow  the  character  and  properties  of  individuality  on  a  collective  and 
changing  body  of  men."  With  these  explicit  unambiguous  definitions  before  us, 
we  inquire,  does  this  bill  present  one  single  characteristic  of  a  corporation  ? — 
For  ourselves,  we  must  insist,  that  we  do  not  recognize  the  first  faint  semblance 
of  a  body  politic  or  artificial  person. 

The  proposition  is  to  confer  a  simple,  ordinary  franchise  upon  individuals, 
quoad  individuals  and  not  as  corporators.  It  is  not  intended  to  invest  these 
individuals  with  any  capacities  or  properties  which  as  natural  persons  they  do 
not  already  possess.  "Naturally,  they  have  the  capacity  to  accept  the  grant  of 
this  franchise,  and  to  exercise  it  in  conformity  with  the  law.    Under  the  pro- 


5 

posed  enactment  they  could  not  assnme  a  corporate  name,  but  must  act  in  their 
individual  names  or  their  firm  name.     It  is  not  proposed  to  create  any  capital  or 
corporate  stock  which  alone  will  be  periled  by  the  enterprise.     Creditors  will  not 
be  limited  in  their  remedy  to  the  common  money  or  effects,  but  the  grantees  will 
be  liable,  jointly  and  severally  to  the  extent  of  the  common  moneys  and  effects, 
and  also  to  the  extent  of  the  several  moneys  and  effects  of  each.     It  is  then  at 
most,  but  the  common  case  of  a  franchise  granted  to  corporations.     In  George's 
view  of  the  existing  (English)  law,  29,  it  is  said,  "one  of  the  greatest  distinc- 
tions in  contemplation  of  law,  between  partnerships  and  corporate  companies,  is 
that  in  the  first  the  law  looks  to  the  individuals  of  whom  the  partnership  is  com- 
posed, and  knows  the  partnership  no  otherwise  than  as  being  such  a  number  of 
individuals  ;  while  in  the  second  it  sees  only  the  creation  of  the  charter,  the  body 
corporate,  and  knows  not  the  individuals."     Again,  Lord  Holt  in  the  King  vs 
the  City  of  London,  says,  "  neither  the  actual  possession  of  properity,  nor  the 
actual  enjoyment  of  franchises  is  of  the  essence  of  a  corporation."     Every  license 
or  permission  to  keep  a  Toll  Bridge  or  Public  Ferry,  is  a  franchise  which  may 
be  held  and  enjoyed  by  the  humblest  citizen.     The  constitution  does  not  prohibit 
the  Legislature  from  conferring  a  franchise  by  special  enactment — this  is  left  en- 
tirely Ito  the  legislative  discretion.     In  all  this,  we  fully  recognize  the  existence  of 
quasi  corporations.     These  may  be  private,  but  they  must  be  created  with  pow- 
ers sub  modo,  and  for  specified  purposes  only,  and  hence  they  are  called  quasi 
corporations.     But  still  in  all  these  there  is  some  distinct  and  well  defined  cor- 
porate power  or  property.     They  may  be  imperfect  corporations  ;  but  still  sub 
modo,  and  for  certain  purposes  they  are  corporations.     In  Angell  and  Ames  on 
Corporations,  it  is  said,  "  the  joint  stock  banks  hi  England  of  modern  creation 
called  into  existence  by  the  act  of  7  Geo.  IV.,  are  considered  quasi  corporations, 
as  that  act  provides  for  the  continuance  of  the  partnership,  notwithstanding,  a 
change  of  the  partners.     In  this  case,  the  partnership  has  the  corporate  attribute 
succession.     And  a  mining  joint  stock  company  was  deemed  a  quasi  corpora- 
tion, because  a  suit  for  a  demand  against  the  company  might  by  virtue  of  an  act 
of  Parliament  be  brought  against  the  directors.     Here  is  attached  the  corporate 
liability  of  being  sued  without  the  names  of  each  individual  partner  composing 
the  company.     The  general  assembly  of  the  Presbyterian  Church  in  Pennsylvania 
is  not  a  quasi  corporation,  because  it  has  not  the  capacity  to  sue  as  an  artificial 
person.     A  quasi  corporation  is  also  established  by  law,  but  that  assembly  is 
not." 

Here  there  is  no  corporate  name,  no  succession,  no  creation  of  any  capacity  or 
property  by  law,  and  no  characteristic  whatsoever  of  a  corporation. 

But  the  difficulty  in  this  case  is  supposed  to  be  rendered  more  embarrassing 
by  Section  33  of  the  same  article  of  the  constitution,  which  provides  "  That  the 
term  corporation,  as  used  in  this  article,  shall  be  construed  to  include  all  asso- 
ciations and  joint  stock  companies  having  any  of  the  powers  or  privileges  of 
corporations  not  possessed  by  individuals  or  partnerships."  And  it  is  argued 
that  "  the  object  of  the  framers  of  the  constitution  in  adopting  the  foregoing 
section  was  evidently  to  prohibit  the  law-making  power  from  granting  to  pri- 
vate persons  by  special  enactments  powers  and  privileges,  which  in  the  absence 
of  law  could  not  be  enjoyed  by  individuals  or  partnerships."  But  such  is  not 
the  reading  of  the  section.  It  clearly  implies  that  there  are  powers  and  privi- 
leges which  without  special  law  may  be  enjoyed  equally  by  corporations  and 
individuals  or  partnerships.  It  does  not  prohibit  the  granting  of  any  power  or 
privilege  which  may  be  held  and  enjoyed  by  individuals  or  partnerships  without 
any  enlargement  of  their  natural  capacities,  but  powers  and  privileges  which  are 
peculiar  to  corporations. 
The  bill  under  review  does  not  propose  the  creation  of  any  new  or  additional 


6 

power  or  capacity  in  the  grantees  of  the  franchise.     They  are  to  take  and  exer- 
cise the  same  as  natural  persons — in  their  natural  capacities,  and  none  other. 
The  privilege  proposed  to  be  conferred   is   not  peculiar  to  a  corporation  either 
perfect  or  quasi — but  may  with  equal  legitimacy  belong  to  individuals.     It  is 
no  answer  to  these  propositions  to  assert  that  natural  persons  without  an  act  of 
law  cannot  hold  or  enjoy  such  franchise,  for  neither  can  it  be  so  held  or  enjoyed 
by  a  corporation  ex  proprio  vigore.     Individuals  associated  as  such  cannot  law- 
fully construct  or  maintain  a  Toll  Bridge  without  the  permission  of  the  munici- 
pal sovereignty  expressed  either  directly  through  the  Legislature  or  indirectly 
through  subordinate  officials.     If  the  same  individuals  become  incorporated  for 
the  same  purposes  under  the  general  law  which  is  authorized  by  the  constitution 
there  is  yet  the  same  absence  of  legal  right  to  the  franchise.     As  a  corporation 
they  are  no  more  entitled  to  the  privilege  than  they  were  as  individuals.     In 
neither  case  can  it  be  lawfully  exercised  without  the  permission  of  the  State  to 
which  it  ultimately  belongs.     The  formation  of  a  corporation  for  the  purpose 
of  exercising  a  franchise  does  not  ipso  facto  imply  a  right  to  such  franchise — 
that  is  to  be  acquired  by  a  distinct  substantive   act.     The  privileges  here  pro- 
posed to  be  conferred  are  such  as  may  be  enjoyed  by  natural  persons  without 
any  enlargement  of  their  natural  capacities — such  as  have  been  so  enjoyed  in 
this  State  from  the  organization  of  its   government — such  as  have  elsewhere 
been  so  enjoyed  for  hundreds  of  centuries.     The  powers  and  privileges  intended 
to  be  prohibited  by  the  constitution  are  such  as  are  peculiar  to  corporations — 
such  as  natural  persons  without  legislative  aid  cannot  enjoy.     It   prohibits  the 
creation  by  special  act  of  associations  and  companies  having  any  of  the  powers 
or  privileges  or  corporations  not  possessed  by  individuals  or  partnerships 
Where  a  power  or  privilege  may  be  possessed  alike   by  an  individual   or  indi- 
viduals and  a  corporation,  there   is    no  inhibition.     It  only  attaches  where  the 
power  or  privilege  is  peculiar  to  a  corporation,  and  is  not  equally  possessed  by 
individuals. 

The  conclusion  to  which  we  are  unavoidably  impelled  is  that  these  provi- 
sions of  the  constitution  were  intended  to  prohibit  the  creation  by  special  enact- 
ments of  corporations  and  quasi  corporations,  and  not  to  prohibit  the  grant 
of  a  franchise  to  individuals  or  partnerships  as  such. 

The  attention  thus  bestowed  upon  this  bill  will  avoid  the  necessity  of  any 
labored  examination  of  the  Assembly  resolution,  which  has  also  been  submitted 
for  our  consideration.  The  propositions  embraced  in  the  resolution  are  substan- 
tially as  follows  :  1.  Can  the  Legislature  constitutionally  confirm  to  a  corpora- 
tion regularly  formed  under  the  general  law  for  the  purpose  of  constructing  and 
maintaining  a  Toll  Bridge  a  license  issued  to  it  by  a  Court  of  Sessions  which 
has  proved  void  for  want  of  jurisdiction  in  such  Court  ?  2.  Can  the  Legislature 
confer  upon  such  corporations  powers  or  privileges  additional  to  those  which  it 
was  supposed  to  poFsess  under  the  act  of  its  creation  and  its  original  license, 
which  has  proved  to  be  void  ? 

These  questions  may  involve  graver  difficnlties  than  those  presented  by  the 
bill  already  considered.  We  are,  however,  of  opinion  that  the  first  must  be 
determined  affirmatively.  Corporations  may  be  formed  under  general  laws, 
and  special  acts  for  their  formation  only  are  prohibited.  In  the  case  now  pre- 
sented it  is  not  proposed  that  the  Legislature  shall  or  may  create  a  corporation 
or  confer  any  corporate  power  by  special  act,  but  simply  to  validate  a  power 
or  privilege  to  a  corporation  already  in  existence  and  formed  under  the  general 
law.  which  is  explicitly  authorized  by  the  constitution.  The  case  supposes  the 
present  existence  of  a  body  politic  capable  of  receiving  from  the  Legislature  or 
others  any  grant  consistent  with  the  objects  and  purposes  of  its  creation.  If  it 
was  formed  for  the  purposes  of  a  Toil  Bridge,  we  are  of  opinion  that  it  may 


receive  directly  from  the  Legislature  the  privilege  of  constructing  and  main- 
taining such  bridge. 

Our  reasoning  upon  the  bill  already  considered  will  apply  to  the  second  ques- 
tion embodied  in  the  resolution.  The  Legislature  may,  in  our  opinion,  by  spe- 
cial act  enlarge  a  simple  franchise,  as  well  as  make  an  original  grant  thereof, 
but  cannot  create  or  enlarge  a  corporate  power  or  privilege — cannot  constitute 
a  corporation  either  perfect  or  quasi. 

It  is  urged  that  the  grant  of  these  privileges  directly  by  the  Legislature  is 
fraught  with  danger  to  the  public, — and  in  this  there  may  be  much  force.  We 
but  say,  that  we  are  unable  to  see  how  a  privilege  threatens  to  be  so  disastrous 
when  derived  directly  from  the  Legislature  ;  and  yet  exactly  the  same  privilege 
with  exactly  the  same  incidents  is  perfectly  safe  and  harmless  when  derived 
from  the  sucordinate  officials  of  the  State.  We  are  inclined  to  think  that  the 
danger,  if  any  results  from  the  character  of  the  privilege,  and  not  from  the 
source  whence  it  is  immediately  derived.  For  the  protection  of  the  public  all 
such  privileges  ought  to  be  vigilantly  guarded  and  restricted,  whether  proceed- 
ing from  special  enactment  or  from  the  general  law.  We  shall  not  in  this  con- 
nection pause  to  inquire  whether  the  privileges  now  proposed  to  be  secured  are 
so  guarded  and  restricted,  and  in  conclusion  have  only  to  express  our  earnest 
fear  that  these,  like  nearly  all  of  similar  privileges  which  we  have  known  to 
proceed  from  Courts  of  Sessions  and  Boards  of  Supervisors  are  incautiously  ex- 
pressed and  without  the  limitations  imperatively  demanded  by  the  general  good. 
I  am  authorized  to  say  that  Messrs.  Ashley,  Farley,  Sherrard,  Taylor  and  Ro- 
gers concur  in  this  report. 

Respectfully,  &c, 

P.  L.  EDWARDS,  Chairman. 


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